Comments on: Feelin’ Berned https://www.whatisdeepfried.com/2016/04/21/feelin-berned/
Mon, 25 Apr 2016 15:38:58 +0000
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By: Dan McCall https://www.whatisdeepfried.com/2016/04/21/feelin-berned/comment-page-1/#comment-105680
Mon, 25 Apr 2016 15:38:58 +0000http://www.whatisdeepfried.com/?p=10950#comment-105680ve mentioned that you donâ€t think I changed the logo enough to warrant free speech protections, even though I placed a pantheon of communists along with Bernie atop the logo. If I had just posted an unaltered logo with the text, â€œIs my comradeâ€ below, I could see why youâ€re focusing in on that as a question of if something is a valid parody or not â€“ even though it still would be â€“ but thatâ€s not the case.
Like I said in the unaltered chat between us, I donâ€t care if you parody my logo. You edited out much of what I said in the chat, which can be viewed in full here: http://bit.ly/parodychattranscript Paul has also told me that you wonâ€t allow him to respond directly on your blog either, holding up his posts in moderation, choosing instead to edit them and post them yourself. That seems pretty weird to me, Jason. Is there some special reason for that? Or for editing our chat and not noting that you did?
In the case of that chat, after a few minutes I saw on chat that you were trying to play some sort of gotcha prank while I was trying to use the platform to help people on my site, which is fine, but you were pressing for a sort of â€˜indemnificationâ€ on internet chat from me which wasnâ€t going to happen.
You edited out the portion in the chat where I stated that you donâ€t need my permission to do a legal parody of Liberty Maniacs. You donâ€t. Nobody is going to stop you, though Iâ€m sure you can come up with a better slogan below than â€œTees funny enough for a Leno fan.â€ But again, that could be hilarious to some of your readers, just as Liberty Maniacs fans dig the Bernie bit. (You also edited out the portion where I enthusiastically gave you the means to contact us and send your idea.)
It sounds a bit like youâ€re a supporter of Bernieâ€s and take exception to me drawing Sanders head in with communist icons of the past to make a joke about Bernieâ€s left-leaning politics. Or you just donâ€t find it funny at all. I can understand in both cases. But it is a parody, and parody is protected speech.
<strong>JY: It's very gracious of you to respond, Dan. I was just listening to an interview you gave on <a href="https://blab.im/iroots-org-activism-bernie-sanders-sues-libertymaniacs-com-interview-with-dan-mccall" rel="nofollow">Blab.im</a> when I saw your post.
If you have not read my <a href="http://www.whatisdeepfried.com/2016/04/25/shootin-the-shirt/" rel="nofollow">follow up to this blog post,</a> where I speak to your lawyer Paul Levy, I will reiterate: it is not that I object to your parody, but that I think that your shirt may not <em>qualify</em> as a parody. It may be protected by fair use under another legal interpretation, but there does not seem to be any genuine parody involved here.
Paul was informed that one of his comments to my site did not post right away because it was flagged as spam. All of what Paul wanted to say then is now <a href="http://www.whatisdeepfried.com/2016/04/25/shootin-the-shirt/" rel="nofollow">in its own blog post. </a>I am still waiting to see if Paul returns the favor and posts my response to his thoughts on his own site, as he has said that he is unwilling to simply post a link back to the article here on Whatisdeepfried.com. <a href="http://pubcit.typepad.com/clpblog/2016/04/bernie-2016-joins-long-line-of-campaign-committees-abusing-trademark-law-to-suppress-criticism.html?cid=6a00d83451b7a769e201b8d1ce56e6970c#comment-6a00d83451b7a769e201b8d1ce56e6970c" rel="nofollow"><em>(Oh! I guess he posted my comments after all.)</em></a>
Both you and Paul suggest that I have been less than forthright because a portion of the conversation we had online was omitted in my article. As I made clear, my computer froze up and I was unable to take a screen grab of a few of the words we exchanged. But what I did post was completely factual and in context, and anyone reading your complete copy of the exchange will see that nothing of substance was left out.
I am definitely a Bernie supporter, and I gave myself hemorrhoids putting door hangers up around Rochester trying to win him a few more primary votes... <em>and for what??</em> Regardless, I don't care what you say about Bernie, I just think the Internet pity-party being thrown for you is a bit premature. I get it: you have to milk this thing. But unless you plan to market a "Bernie Gave Me Hemorrhoids" shirt and send me three cases, I must continue to toss cold water on your somewhat spurious claim of "parody".</strong>]]>Hi Jason, I saw you posted this on my site so I thought I’d respond quick.
I’m sorry you don’t like the parody I did using the Bernie logo and all that. I’m still not sure what your exact issue is, still, however. Youâ€™ve mentioned that you donâ€™t think I changed the logo enough to warrant free speech protections, even though I placed a pantheon of communists along with Bernie atop the logo. If I had just posted an unaltered logo with the text, â€œIs my comradeâ€ below, I could see why youâ€™re focusing in on that as a question of if something is a valid parody or not â€“ even though it still would be â€“ but thatâ€™s not the case.

Like I said in the unaltered chat between us, I donâ€™t care if you parody my logo. You edited out much of what I said in the chat, which can be viewed in full here: http://bit.ly/parodychattranscript Paul has also told me that you wonâ€™t allow him to respond directly on your blog either, holding up his posts in moderation, choosing instead to edit them and post them yourself. That seems pretty weird to me, Jason. Is there some special reason for that? Or for editing our chat and not noting that you did?

In the case of that chat, after a few minutes I saw on chat that you were trying to play some sort of gotcha prank while I was trying to use the platform to help people on my site, which is fine, but you were pressing for a sort of â€˜indemnificationâ€™ on internet chat from me which wasnâ€™t going to happen.

You edited out the portion in the chat where I stated that you donâ€™t need my permission to do a legal parody of Liberty Maniacs. You donâ€™t. Nobody is going to stop you, though Iâ€™m sure you can come up with a better slogan below than â€œTees funny enough for a Leno fan.â€ But again, that could be hilarious to some of your readers, just as Liberty Maniacs fans dig the Bernie bit. (You also edited out the portion where I enthusiastically gave you the means to contact us and send your idea.)

It sounds a bit like youâ€™re a supporter of Bernieâ€™s and take exception to me drawing Sanders head in with communist icons of the past to make a joke about Bernieâ€™s left-leaning politics. Or you just donâ€™t find it funny at all. I can understand in both cases. But it is a parody, and parody is protected speech.

JY: It’s very gracious of you to respond, Dan. I was just listening to an interview you gave on Blab.im when I saw your post.

If you have not read my follow up to this blog post, where I speak to your lawyer Paul Levy, I will reiterate: it is not that I object to your parody, but that I think that your shirt may not qualify as a parody. It may be protected by fair use under another legal interpretation, but there does not seem to be any genuine parody involved here.

Paul was informed that one of his comments to my site did not post right away because it was flagged as spam. All of what Paul wanted to say then is now in its own blog post. I am still waiting to see if Paul returns the favor and posts my response to his thoughts on his own site, as he has said that he is unwilling to simply post a link back to the article here on Whatisdeepfried.com. (Oh! I guess he posted my comments after all.)

Both you and Paul suggest that I have been less than forthright because a portion of the conversation we had online was omitted in my article. As I made clear, my computer froze up and I was unable to take a screen grab of a few of the words we exchanged. But what I did post was completely factual and in context, and anyone reading your complete copy of the exchange will see that nothing of substance was left out.

I am definitely a Bernie supporter, and I gave myself hemorrhoids putting door hangers up around Rochester trying to win him a few more primary votes… and for what?? Regardless, I don’t care what you say about Bernie, I just think the Internet pity-party being thrown for you is a bit premature. I get it: you have to milk this thing. But unless you plan to market a “Bernie Gave Me Hemorrhoids” shirt and send me three cases, I must continue to toss cold water on your somewhat spurious claim of “parody”.

With respect, I believe you are absolutely wrong legally in suggesting that a logo has to be altered to qualify as fair use in the context of a parody, any more than a word mark needs to be altered to justify fair use in the context of criticism. If I say, Coca-Cola Sucks, I can do that as a matter of fair use without making it, say, COcA-C0lA Sucks. Or, I could use the term Coca-Cola in its distinctive font with the word “sucks.” Same for what McCall did with the Bernie 2016 logo — apparently there WAS a modest alteration of the logo (the star was re-stylized to resemble the “red star”), but even had he not done that, he would have absolutely been entitled to use the logo unchanged to designate Sanders the candidate as the subject of his comments.

I might add that your interesting chat exchange with Dan McCall missed the boat a little bit — you could have set it up better to make your point.

JY: Thank you for your response, Paul (folks, Paul is the lawyer representing Liberty Maniacs against the Sanders campaign’s lawyer in this manner). I should make it clear that I do not object to LM’s shirt design, and myself respect the broadest view of parody rights. My beliefs are doubled when the speech is political.

However, I think you are on thin ice regarding the actual use of the Sanders mark, even as incorporated into the shirt’s overall design. You use the Coca-Cola mark as an example, saying that you could add the word “sucks” to the existing graphic and call it legit parody. I would be inclined to believe you if only you could provide an example. A cursory Google search found nothing like what you describe. Instead, I found many variations on the concept below, where the mark was transformed, but not explicitly duplicated.

However, I found numerous examples of McDonald’s parody products that incorporated the famous “M”, but not without also including text that commented on McDonald’s itself. And in all cases, the name “McDonald’s” was never used. Perhaps you could offer some insight into why one part of the McDonald’s trademark can be appropriated but not another.